Defendant 1 and one other

Prosecutor

The summary of prosecution, the paper of prosecution, and the court shall hold a trial.

Attorney Yoon Jin-do

Seoul Southern District Court Decision 2012Gohap547 Decided September 26, 2013

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

A. As to the primary facts charged

From the next day, Nonindicted Co. 1 (hereinafter “Nonindicted Co., Ltd.”) (hereinafter “Nonindicted Co. 1”) is the victim who has acquired the author’s property right to the instant film work from a genuine copyright holder. The lower court, based on the evidence of the prosecutor, is difficult to recognize Nonindicted Co. 1 (Nonindicted Co. 1) as the victim who has acquired the author’s property right from a genuine copyright holder, solely on the basis of the certificate of film rating, the certificate of film rating submitted by the prosecutor, the documents related to the transfer between Nonindicted Co. 1 and Nonindicted Co. 2 or Nonindicted Co. 3, etc., and the power of attorney, which are written between Nonindicted Co. 1 and Nonindicted Co. 3, which are not sufficient to recognize as the victim who has acquired the author’s property right from a true copyright holder. As long as the materials that can recognize the transfer of copyright after a certain phase

B. As to the ancillary charges

If the Defendant was unable to obtain permission from the copyright holder to use the copyrighted work, and the copyright holder became aware of the unauthorized sharing and distribution of the same type of copyrighted work as this case, it would have been an issue. Therefore, even if the copyright holder is indicated in the facts charged in the indictment as his name and in bad faith, it would not hinder the Defendant’s exercise of right to defense

2. The facts charged in this case

A. Main facts charged

Defendant 1 is the representative director of Guro-gu Seoul ( Address omitted) and 510, and Defendant 2 is a corporation established for the purpose of providing software advice, development, and supply business.

(1) Defendant 1

No person shall infringe on author's property rights or other property rights protected pursuant to the Act by means of reproduction, performance, public transmission, exhibition, distribution, lease or preparation of secondary copyright.

Defendant 1: (a) provided users with a free storage space via the ○○○○○○○○○○ website operated by Defendant 2, which is the file sharing site; (b) allowed users to download files that they want by means of search function utilization, etc.; and (c) generated profits by collecting user fees in proportion to the volume of the download in case of downloading files.

In the meantime, on June 29, 2011, the victim non-indicted 1 company (the non-indicted 1 company (the non-indicted 1 company) committed an act of infringing the copyright of the victim company (the copyright holder) by allowing the victim non-indicted 1 company (the non-indicted 1 company) to download the film "(motion picture title omitted)" in the above site, and allowing the users to download it. In addition, during the period from June 29 to July 11, 201, the video work, such as documentary evidence list, as shown in attached Form 27 times in total, and allowing the unspecified number of users to easily reproduce and receive and transmit each of the above video works at any time, thereby infringing the copyright of the victim company.

However, Defendant 1, with the knowledge of the fact that the film work subject to copyright protection is being illegally distributed at his own site, received a request for suspension of infringement, including the request for establishment of a detailed language on the title and composition of the above film work on June 27, 2011 from the victim company, the copyright holder of the copyrighted work listed in the attached list, but did not take appropriate measures to prevent such infringement, and did not take effective measures to prevent copyright infringement, such as the establishment of a cinematographic work in the form of a cinematographic work, and did not take effective measures to prevent copyright infringement, and neglected all the cinematographic works carried out by users, and caused users to use the site by raising the distribution ratio of the diversified profit according to the seller's level.

Accordingly, Defendant 1 3, 5, 9, 10, 11, 12, 13, 14, 16, 17, 22, 23, 24, 25, 26, and 27 of the No. 1, 4, 6, 7, 8, 15, 19, 20, 20, 21 of the No. 1, 23, 24, 26, and 21 of the No. 1, was habitually assisted by Defendant 1 for profit.

(2) Defendant 2 corporation

Defendant 1, a representative director, aided and abetted Defendant 2’s copyright infringement on the business of Defendant 2, as described in the above paragraph (1).

B. Preliminary charges

Victims are the same as the primary facts charged in addition to changing the victim to the name of the non-indicted 1 company (the non-indicted 1 company)'s non-indicted 1 company.

3. Determination

A. As to the primary facts charged

The court below found the defendant not guilty on the ground that the court below found the non-indicted 1 company (the non-indicted 2 company) and the non-indicted 3 company (the non-indicted 1 company) as the copyright holder holding the right to make a domestic version of the film work in the attached list, and caused infringement of the author's property right by aiding and abetting the defendants' copyright infringement. However, the court below found the non-indicted 1 company (the non-indicted 1 company) as not guilty on the ground that the transfer-related documents and proxy documents related to the transfer made between the non-indicted 1 company (the non-indicted 2 company) and the non-indicted 2 company or the non-indicted 3 company, etc. were merely the materials which the film rating has been decided by the Korea Media Rating Board, and the above transfer-related documents and power of attorney alone are hard to recognize that the non-indicted 2 company and the non-indicted 3 company are the true copyright holder of

In addition to the aforementioned documentary evidence from September 5, 2012, the prosecutor asserted that the defense counsel of the Defendants asserted that Nonindicted Company 1 (the “Nonindicted Company”) was the copyright holder of the instant cinematographic work with a preparatory document dated September 5, 2012, and did not submit evidence to prove that Nonindicted Company 1 (the “Nonindicted Company”) was the copyright holder of the instant cinematographic work. In addition to the aforementioned documentary evidence from the date of the trial, the prosecutor failed to submit evidence to prove that Nonindicted Company 1 (the “Nonindicted Company”) was the copyright holder of the instant cinematographic work from the genuine copyright holder, and Nonindicted Company 1 (the “Nonindicted Company”) was the copyright holder of the instant cinematographic work through several stages. However, there were circumstances in which the said cinematographic work was taken over the author’s property right to the instant cinematographic work. However, if the cinematographic work was made open to the public and its production and distribution period was close to the date of the instant crime, the original copyright holder is identified, and there is insufficient evidence to prove that Nonindicted Company 1 was the copyright holder (the victim).

Therefore, the judgment of the court below which acquitted the primary charges of this case on the grounds that there is no proof of criminal facts is just, and the prosecutor's assertion is without merit.

B. As to the ancillary charges

As the court below properly explained, author's property right is a kind of intellectual property right that gives a property right to a creative production the idea and appraisal of the creator of which has been widely expressed. It is a right that has distinct characteristics from the object of general property crime, and furthermore, it is possible for a right holder to allow a free use by the general person or a specific person. Therefore, in imposing punishment on the act of infringement, it is necessary to specify who is the genuine right holder, i.e., the victim of the act of infringement. Since the defendant's defense counsel asserted that there is no evidence to recognize that the copyright holder of the cinematographic work of this case was the copyright holder of the cinematographic work of this case, the court below tried by the prosecutor for a long time at the court of the court below on September 5, 2012. However, the prosecutor added the facts charged by adding the victim to "titled person" at the time 15 months have passed since the prosecution of this case, and the prosecutor failed to submit evidence to prove that the victim was the genuine right holder of the cinematographic work of this case.

Therefore, since the conjunctive facts charged in this case cannot be said to have been specified as the victim's unclear facts charged, the judgment of the court below which dismissed the prosecution is just, and the prosecutor's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Attachment]

Judge final (Presiding Judge) Man Jae-nam